Nost v. Broadhead et al
ORDER ADOPTING REPORT AND RECOMMENDATION 36 . Petitioner's Amended §2254 Petition (Doc. 10 ) is denied and this case is dismissed with prejudice. A Certificate of Appealability is denied and shall not issue. The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 9/16/15. (KAH)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Lyle Broadhead, et al.,
Pending before the Court is a Report and Recommendation issued by United
States Magistrate Jacqueline Rateau that recommends denying Petitioner’s Amended
Habeas Petition filed pursuant to 28 U.S.C. §2254. (Doc. 36.) As thoroughly explained
by Magistrate Judge Rateau, Petitioner’s petition is untimely. As Petitioner’s objections
(Doc. 37) do not undermine the analysis and proper conclusion reached by Magistrate
Judge Rateau, Petitioner’s objections are rejected and the Report and Recommendation is
Before Petitioner can appeal this Court's judgment, a certificate of appealability
must issue. See Fed. R. App. P. 22(b)(1) (the applicant cannot take an appeal unless a
circuit justice or a circuit or district judge issues a certificate of appealability under 28
U.S.C. § 2253(c)). Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may
issue only if the applicant has made a substantial showing of the denial of a constitutional
right. In the certificate, the court must indicate which specific issues satisfy this showing.
See 28 U.S.C. §2253(c)(3). A substantial showing is made when the resolution of an
issue of appeal is debatable among reasonable jurists, if courts could resolve the issues
differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). Upon review of the record in light of the standards for granting a
certificate of appealability, the Court concludes that a certificate shall not issue as the
resolution of the petition is not debatable among reasonable jurists and does not deserve
Accordingly, IT IS HEREBY ORDERED as follows:
1. The Report and Recommendation (Doc. 36) is accepted and adopted;
2. Petitioner’s Amended §2254 Petition (Doc. 10) is denied and this case is
dismissed with prejudice;
3. A Certificate of Appealability is denied and shall not issue; and
4. The Clerk of the Court shall enter judgment accordingly and close the file in this
Dated this 16th day of September, 2015.
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